R v Anthony - [2013] QCA 95

SUPREME COURT OF QUEENSLAND

CITATION:

R v Anthony [2013] QCA 95

PARTIES:

R
v
ANTHONY, Luke Stephen Keith
(applicant)

FILE NO/S:

CA No 336 of 2012
DC No 348 of 2012
DC No 439 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

3 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2013

JUDGES:

White JA and Atkinson and Martin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal against sentence is granted.

2.   The appeal is allowed.

3.   The sentence imposed on count 1 is set aside and instead a sentence of two years imprisonment is imposed.

4.   The sentence imposed on count 2 is set aside and instead a sentence of four years imprisonment is imposed.

5.   The sentence imposed on count 3 is set aside and instead a sentence of three years imprisonment is imposed.

6.   The sentences on counts 1, 2 and 3 are to be served concurrently with each other and with the penalties imposed on the summary charges.

7.   The applicant is eligible for release on parole on 3 May 2013.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant pleaded guilty to one count of dangerous operation of a vehicle, one count of robbery with personal violence, one count of wilful damage, one summary charge of wilfully destroying or damaging corrective services facility or property and one summary charge of unregulated high risk activity – the applicant submitted that the sentences imposed were manifestly excessive when one has regard to sentences imposed on similar or more serious offenders – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)(c), s 160C
Victims of Crime Assistance Act 2009 (Qld), s 15

R v Blanch[2008] QCA 253, cited
R v Bowen & Ambrym [1998] QCA 394, considered
R v Briody (2002) 134 A Crim R 170; [2002] QCA 364, considered
R v Bush[1996] QCA 172, considered
R v Carroll & Anor[1997] QCA 378, considered
R v El Hassan, unreported, Court of Appeal, Qld, CA No 401 of 1994, 29 November 1994, considered
R v Gray[2012] QCA 144, cited
R v Hamilton[2009] QCA 391, approved
R v Mallon[1997] QCA 58, cited
R v Monday[2000] QCA 491, considered
R v Taylor & Napatali; ex parte A-G (1999) 106 A Crim R 578; [1999] QCA 323, cited
R v White[2012] QCA 115, cited

COUNSEL:

The applicant appeared on his own behalf
D C Boyle for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

WHITE JA: I have read the reasons for judgment of Atkinson J and agree with her Honour’s reasons that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Anthony

Details

AGLC: R v Anthony [2013] QCA 95
Case: [2013] QCA 95
Decision Date: 3 May 2013

CaseChat Overview and Summary

In this case, the applicant, Anthony, appealed against the sentence imposed by the lower court. The applicant pleaded guilty to multiple charges including dangerous operation of a vehicle, robbery with personal violence, wilful damage, and two summary charges related to corrective services and high risk activity. The applicant argued that the sentences imposed were manifestly excessive when compared to sentences for similar or more serious offences. The appeal was heard in the court of appeal, which was required to determine whether the sentence was indeed manifestly excessive.

The court had to consider whether the sentences were so high that they could be considered manifestly excessive. The court noted the seriousness of the offences but also considered the principle that sentences should not be excessively disproportionate to the gravity of the offence and the culpability of the offender. The court examined the sentences imposed in similar cases and found that the sentences in this case were indeed higher than those imposed for similar offences. Therefore, the court concluded that the sentences were manifestly excessive.

Following the conclusion that the sentences were manifestly excessive, the court allowed the appeal. The original sentences were set aside, and new sentences were imposed for each of the main charges. These new sentences were two years for the dangerous operation of a vehicle, four years for the robbery with personal violence, and three years for the wilful damage. These sentences were to be served concurrently with each other and with the penalties imposed on the summary charges. The court also determined that the applicant would be eligible for release on parole on 3 May 2013.

Orders

Orders of the court

1. The application for leave to appeal against sentence is granted.

2. The appeal is allowed.

3. The sentence imposed on count 1 is set aside and instead a sentence of two years imprisonment is imposed.

4. The sentence imposed on count 2 is set aside and instead a sentence of four years imprisonment is imposed.

5. The sentence imposed on count 3 is set aside and instead a sentence of three years imprisonment is imposed.

6. The sentences on counts 1, 2 and 3 are to be served concurrently with each other and with the penalties imposed on the summary charges.

7. The applicant is eligible for release on parole on 3 May 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Anthony [2013] QCA 95
PARTIES:	R v ANTHONY, Luke Stephen Keith (applicant)
FILE NO/S:	CA No 336 of 2012 DC No 348 of 2012 DC No 439 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	3 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	4 March 2013
JUDGES:	White JA and Atkinson and Martin JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal against sentence is granted. 2. The appeal is allowed. 3. The sentence imposed on count 1 is set aside and instead a sentence of two years imprisonment is imposed. 4. The sentence imposed on count 2 is set aside and instead a sentence of four years imprisonment is imposed. 5. The sentence imposed on count 3 is set aside and instead a sentence of three years imprisonment is imposed. 6. The sentences on counts 1, 2 and 3 are to be served concurrently with each other and with the penalties imposed on the summary charges. 7. The applicant is eligible for release on parole on 3 May 2013.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant pleaded guilty to one count of dangerous operation of a vehicle, one count of robbery with personal violence, one count of wilful damage, one summary charge of wilfully destroying or damaging corrective services facility or property and one summary charge of unregulated high risk activity – the applicant submitted that the sentences imposed were manifestly excessive when one has regard to sentences imposed on similar or more serious offenders – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(2)(c), s 160C Victims of Crime Assistance Act 2009 (Qld), s 15 R v Blanch[2008] QCA 253, cited R v Bowen & Ambrym [1998] QCA 394, considered R v Briody (2002) 134 A Crim R 170; [2002] QCA 364, considered R v Bush[1996] QCA 172, considered R v Carroll & Anor[1997] QCA 378, considered R v El Hassan, unreported, Court of Appeal, Qld, CA No 401 of 1994, 29 November 1994, considered R v Gray[2012] QCA 144, cited R v Hamilton[2009] QCA 391, approved R v Mallon[1997] QCA 58, cited R v Monday[2000] QCA 491, considered R v Taylor & Napatali; ex parte A-G (1999) 106 A Crim R 578; [1999] QCA 323, cited R v White[2012] QCA 115, cited
COUNSEL:	The applicant appeared on his own behalf D C Boyle for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent